The Road Not Taken

September 8, 2006


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9/11: Five Years Later
> Abuses of Power: Assaults on civil liberties
> Victories for Democracy: Successes in the fight for freedom
> The Road Not Taken: Security measures the Bush Administration has ignored
> Voices: ACLU staff on 9/11 and the fight for freedom since 2001

RELATED FEATURES
> The Challenge to Illegal Spying
> Torture: Seeking Truth and Accountability
> Secret CIA Kidnappings: El-Masri v. Tenet
> Reform the Patriot Act
> Video: Stop the Abuse of Power

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What the Bush Administration Should Be Doing to Keep Americans Safe

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by Jay Stanley

In the five years since September 11, the Bush administration approach to national security has been marked by one defining characteristic: watching everyone. Instead of working to shore up the many gaps that exist in our security infrastructure – from our virtually defenseless rail system to our porous cargo ports, or focusing on improving human intelligence, or concentrating on capturing Osama Bin Laden -- our government has chosen spying on innocent Americans as its principal approach to preventing another terrorist attack. That approach has included data mining, watch lists, NSA spying, passenger profiling systems, and national identity card systems.

The Bush administration’s wrong-road approach to security has created unprecedented threats to our privacy and civil liberties, failed to make us safer, and diverted resources from more effective avenues of protecting against terrorism and other threats to our well-being.

Many security experts, including former government officials, are urging a different approach to security that is likely to be both more effective and less damaging to Americans’ freedoms.

The Right Road

The ACLU believes that these strategies can help keep Americans safe without violating our fundamental freedoms:

  • Physical security, not identity-based checks. Identity-based checks are inherently unreliable, because the bare facts of a person’s identity do not reveal terrorist intent (and can actually obscure it, as in the case of a decorated military veteran like Timothy McVeigh). Furthermore, democratic societies neither have nor want (nor are capable of instituting) airtight identity systems, making this approach futile. Basic, commonsense physical security measures equally applied are far more effective. More has been done to improve airline security since 9/11 through physical measures like reinforced cockpit doors than would ever be gained by government sweeps through passengers’ personal data.
  • Traditional investigations, not dragnets. The best way to stop terrorism is still through old-fashioned investigatory techniques that rely on working outward from known leads and suspects. Attempting to work inward by narrowing suspect lists down from the entire U.S. population to a handful of terrorists is too unreliable and inefficient a means of finding true terrorists, whether that process is based on crude profiling techniques or cutting-edge data-mining analysis. The principle of individualized suspicion not only protects individuals, but also imposes a necessary discipline on police investigators, who can be tempted at times to engage in wasteful and inefficient fishing expeditions.
  • A whole-view, not an airline-centric approach. Airline security understandably remains a very high priority, but enormous resources are already devoted to it and experts must carefully evaluate how much more security can realistically be achieved and at what cost. Hijacking airplanes is not the only way to kill civilians or attack buildings. It would not make sense for us to devote vast resources to bring the security level of one target from 98 percent to 99 percent when another, equivalent target is only 30-percent protected.

Within such an overall approach, many steps can be taken to improve security without threatening Americans’ privacy and other civil liberties. A full, rational evaluation must be conducted to determine what those are, but they might include:

  • More attention to vulnerable ground targets. Other security should include scrutiny of cargo at our borders, rational steps to protect vulnerable points in the nation's infrastructure, radiation detection, and increased protection at nuclear power plants, chemical factories, and other dangerous facilities. Simple measures, such as controlling how close automobiles and trucks can park to “soft” targets, such as government buildings, shopping malls and football stadiums, could go a long way toward making Americans safer.
  • Improved training of airline screeners. The GAO has reported that the TSA is having trouble providing not just adequate training but also staffing levels for airport screeners. Because of a lack of resources, the TSA says, it has been unable to provide high-speed Internet connectivity to many of its screeners, which has impeded the provision of online training. Another underutilized tool is the Threat Image Projection (TIP) program, in which simulated images of dangerous objects are projected in front of screeners while they are on duty to keep them sharp in the face of what can be a boring and repetitive task. This program could be expanded to cover all gates and checked-baggage screening points.
  • Deployment of airline explosive screening. The metal detectors through which passengers currently pass cannot detect plastic explosives – an enormous security hole. Particle-sniffing portals designed to detect plastic explosive as passengers step through have not been widely deployed. Particle sniffers that are used for the discrete purpose of identifying explosives should be more widely deployed.
  • Screening all checked baggage. The TSA has not met its goal of screening 100 percent of checked baggage due to shortages of trained personnel and equipment, an approach the ACLU has long advocated.
  • Improving terrorist watch lists by making them more accurate and timely. The U.S. government’s watch lists, with hundred of thousands of names, are far broader than what most people think of when they hear the term “terrorist watch list.” Bloated watch lists are bad not only because they cast innocent travelers as suspected terrorists, but also because they divert security resources. What is need is to impose some rigor in the procedures by which names are added and subtracted from those databases, and meaningful due process procedures by which Americans who are not terrorists can fight their inclusion on these lists.
  • Cargo security. Greater efforts may be needed to scrutinize cargo, both at the nation’s borders and on commercial airliners. The technology exists to screen all cargo carried aboard passenger jets but it is not currently being done. Approximately 22 percent of all air cargo is carried on passenger planes each year. Deployment of fast and efficient screening technology and blast-hardened cargo containers are among the solutions to this problem that have been suggested.

Needed: A Rational Evaluation

Instead of embarking willy-nilly on unprecedented government sweeps through our personal data, the government must conduct a rational evaluation and prioritization of our security needs. Security funds are limited and must be spent where they will do the most good. And above all, it must never be forgotten that the ultimate goal is the protection of the well-being of Americans, and that there are many ways that goal can be threatened.

A rational security evaluation would take into account:

  • the different security vulnerabilities we face
  • the likelihood that those vulnerabilities will be exploited
  • the severity of the consequences of such attacks
  • the availability of remedies for those vulnerabilities
  • the likely effectiveness of such remedies
  • the costs of such remedies (including intangible costs such as damage to our privacy, freedom, and way of life)

This administration has clearly never undertaken such an evaluation:

  • It pushed the Patriot Act without making any attempt to see whether it was addressing any of the problems that actually contributed to 9/11.
  • It has refused to take proper steps to secure many gaping vulnerabilities, such as chemical plants.
  • Its airline security policies have been reactive and irrational – focused on a few, super-specific threats such as exploding shoes and water bottles, while ignoring gaping holes in airline security such as cargo and poorly trained screeners who have been repeatedly found ineffective at screening out ordinary guns and explosives.
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